Could Trump Fire Mueller? It’s Complicated.

But the real question is what Congress would do to stop him.

By ERIC COLUMBUS

August 03, 2017

Eric Columbus served as senior counsel to the deputy attorney general in the Department of Justice from 2009 to 2014 and as special counsel to the general counsel of the Department of Homeland Security from 2014 to 2017. Follow him on Twitter at @ericcolumbus.

As President Donald Trump continues to rage against the Russia investigation and hint at firing his attorney general, the rules of the game are baffling to some—including to members of Congress. Here’s an attempt to sort out the major legal questions.

So who can? Department of Justice regulations make clear that Mueller may be fired by the attorney general only for “good cause.” Deputy Attorney General Rod Rosenstein, who serves as the acting attorney general for Mueller-related issues due to Jeff Sessions’ recusal, has made clear in congressional testimony that he’s seen nothing of the sort.

If Sessions is replaced as attorney general, then his successor would not be recused, and could either gin up good cause to fire Mueller or (more likely) rescind the good-cause requirement and then terminate him.

Various senators have publicly warned Trump not to fire Sessions, which suggests that if he’s inclined to do so, he’d prefer a method that lets him sidestep the Senate.

If Trump fires Sessions, can he install a replacement without going through the Senate confirmation process?

Almost definitely.

While many (including me) have fretted about the possibility of a recess appointment, that door is likely to shut, even though the Senate is expected to break on Thursday for its August vacation. Under the Constitution, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In other words, if the Senate skips town, he doesn’t need their vote, and the new person would serve until the end of the next congressional session, i.e. the end of 2018.

In recent years, however, the Senate has tried to clamp down on attempts to sidestep its authority through recess appointments. Starting in 2007, the Senate began convening “pro forma sessions” during what would otherwise be a recess. No actual work transpired at these sessions, just a quick gavel-in and gavel-out. President Barack Obama tried to call the Senate’s bluff by making recess appointments during these times, on the theory that a recess interspersed with meaningless kabuki is still a recess. The Supreme Court disagreed, and invalidated those recess appointments in 2014. The court held that it’s for the Senate to decide what is and isn’t a recess, and that even if it walks and talks like a duck, the Senate can still call it a chicken.

It turns out that Senate Majority Leader Mitch McConnell has been calling ducks chickens all year long. In February, April and July, the Senate broke for 10 days or more. Each time, the Senate convened pro forma sessions. Subsequent reporting indicated that this was part of a plan hatched by the Senate GOP to prevent Trump from making any recess appointments at all. So it’s highly unlikely that Trump will be able to make a recess appointment during the upcoming break.

Does this mean Trump can’t ease out Sessions without sparking a messy confirmation process for his successor?

A Judiciary Committee confirmation hearing would inevitably rehash the firing of FBI Director James Comey, and even Republicans would be unlikely to confirm a nominee who didn’t pledge to protect Mueller’s investigation.

But Trump has other cards to play. He can appoint an acting attorney general and never get around to nominating a real one. By default, Rosenstein would take the helm. But Rosenstein is the one who hired Mueller, so if Trump’s goal is to get rid of the special counsel, he needs to pick someone else as acting attorney general.

A 1998 law, the Vacancies Reform Act, allows him to do so. The VRA lets him install as attorney general, for a limited time, any Senate-confirmed official or any Department of Justice employee who has attained a certain level of seniority and has been on the job for at least 90 days. This means he has about 3,000 lawyers to choose from. That said, the vast majority are career employees who would not serve his purposes. Even his political appointees aren’t likely to be more pliable than Sessions and Rosenstein. But he needs only one, and with a little planning he could install a true believer to a political position at DOJ—as a sleeper agent—and then (after easing out Sessions) elevate him or her to attorney general in 90 days. Under the VRA, such a person could serve as acting attorney general for only 210 days—plus another 210 days if Trump eventually gets around to nominating someone—but that’s plenty of time to engineer Mueller’s firing or otherwise limit his work.

To be sure, it’s not crystal clear whether Trump can use the VRA when there’s a deputy attorney general and associate attorney general who are able to serve. He could, of course, moot that issue by axing them as well. There’s also an argument that the VRA doesn’t apply in cases in which the vacancy is created by a firing, rather than resignation or disability, but as DOJ’s Office of Legal Counsel noted shortly after enactment, the legislative history suggests that it does. As a practical matter, Trump need not wait to resolve these issues but could follow the VRA and take his chances if litigation ensues.

The intricacies of the law seem to baffle even some senators. Ben Sasse of Nebraska, who at every opportunity talks about the need to bolster civics education, made an impassioned speech imploring Trump not to make a recess appointment. Yet Sasse seemed not to realize that the Senate itself can block that—not to mention that it has been blocking it for months.

Senator Chuck Grassley of Iowa took to Twitter, with his typical quirks of capitalization and abbreviation, to caution Trump against firing Sessions—but his caution was an odd one. “Everybody in D.C. Shld b warned that the agenda for the judiciary Comm is set for rest of 2017,” Grassley tweeted last week. “Judges first subcabinet 2nd / AG no way.” Yet as discussed above, Trump wouldn’t want his Sessions replacement to go before the Judiciary Committee. And now he can cite Grassley as a reason not to, and take his chances with the VRA!

Another devilish option is for Trump to move Sessions to the Department of Homeland Security—a way to ease him out without enraging conservatives who rallied to the attorney general’s defense after Trump started disparaging him. If Sessions is happy, they’ll be happy. And why wouldn’t Sessions be happy? Moving to DHS would enable him to focus on two issues near to his heart: immigration and terrorism (he dislikes both). And he would be free of Trump’s incessant Russia-related undermining. His former Judiciary Committee counsel, Gene Hamilton, is already in the DHS front office, and his former staffer Stephen Miller is Trump’s point man on immigration. The White House is denying this will happen, but this White House denies a lot of things.

Of course, another Sessions confirmation hearing could be dicey, given questions about whether he testified truthfully regarding his Russian contacts at his last one. Trump could avoid this headache by making him acting secretary under the VRA, although the 210-day clocks would start to run. That could be enough time to give Sessions a soft landing and even to position himself to run for governor of Alabama next year.

To sum up, it’s quite likely Trump can install an attorney general who is able and willing to fire Mueller. The tougher question, best left for another day, is whether and how Congress can act to stop it. Senator Lindsey Graham has announced that he’s working on legislation that would enable a judicial review of any firing of a special counsel. There are questions as to the constitutionality of such a provision. What’s not in doubt, however, is that Congress could, if it chooses, turn up the political heat if Trump fires Mueller, and could even deem such an act an impeachable offense. Graham said that firing Mueller “could be the beginning of the end of the Trump presidency.” This, more than anything, could be why Mueller keeps his job.